315 F. Supp. 3d 707
W.D.N.Y.2018Background
- Nationstar Mortgage sued to foreclose a mortgage on 64 Clifton Street, Manchester, NY; defendants Anthony and Bonita Nedza did not appear and the clerk entered default.
- Loan originated in 2007 for $85,000; plaintiff alleges default beginning November 1, 2013 and seeks foreclosure, sale, and attorneys' fees.
- Plaintiff served RPAPL pre‑litigation and other required notices and filed RPAPL § 1306 information with the NYDFS.
- Plaintiff filed a notice of pendency in Ontario County but attached only the property description and did not file a copy of the complaint with the notice as required by CPLR § 6511(a).
- Plaintiff moved for default judgment and to appoint a referee for sale; the court denied the motion without prejudice for failure to file a procedurally compliant notice of pendency and noted deficiencies in the attorneys’ fees submission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment and foreclosure should be entered after clerk's default | Nationstar moved for default judgment and foreclosure based on unpaid debt, secured mortgage, and default | Defendants did not appear to contest allegations | Denied without prejudice because of procedural defect (invalid notice of pendency) despite merits appearing established |
| Compliance with RPAPL/CPLR requirements for notice of pendency (CPLR § 6511(a)) | Plaintiff contends it filed notice of pendency in accordance with RPAPL § 1331 and CPLR Article 65 | Defendants (and court) note the complaint was not filed with the notice as CPLR § 6511(a) requires | Court held failure to file complaint with notice rendered the notice defective and void; this defect required denial of default judgment |
| Adequacy of service and RPAPL § 1303/1304/1306 notices | Plaintiff served summons/complaint and required RPAPL notices and filed §1306 information | No contest; record shows service of those pre‑litigation notices | Court found compliance with §§1304 and 1306 and service of §1303 and §1320 notices, but pendency defect controlled outcome |
| Request for attorneys' fees | Plaintiff sought $1,500 under mortgage's fee clause | Defendants did not respond; court examined sufficiency of supporting documentation | Court did not reach merits due to pendency defect; nevertheless flagged fee request as deficient for lack of contemporaneous time records and inadequate detail |
Key Cases Cited
- City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir.) (disfavoring default judgments; district court discretion circumscribed)
- Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir.) (doubts on defaults resolved in favor of the defaulting party)
- Greathouse v. JHS Sec. Inc., 784 F.3d 105 (2d Cir.) (default judgment committed to district court's discretion)
- Diaz v. Paterson, 547 F.3d 88 (2d Cir.) (notice of pendency alerts future buyers and is a powerful provisional remedy)
- 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313 (N.Y. 1984) (strict compliance required for notices of pendency due to their drastic effect)
- U.S. Bank, N.A. v. Squadron VCD, LLC, [citation="504 F. App'x 30"] (2d Cir.) (elements required for mortgage foreclosure)